What the ICC Withdrawal Says about South Africa’s Future Global Role

The current government is returning to views on national sovereignty and “rule by law” that were once endorsed by the apartheid-era regime.

In 1948, the National Party of South Africa, which held a parliamentary majority but had lost the popular vote by 11 percentage points, began to legalize apartheid.

First it adopted the Prohibition of Mixed Marriages Act and the Immorality Amendment Act, criminalizing new and existing relationships across the “color line.” Then the party moved on to the Group Areas Act, which segregated living areas, and the Population Registration Act, which defined race—and therefore the futures of all people in South Africa. The Natives (Abolition of Passes and Co-ordination of Documents) Act introduced internal passport and identity documents, the Bantu Education Act ensured separate and unequal education, the Natives (Prohibition of Interdicts) Act stopped black people from using the law in their defense, the Extension of University Education Act excluded black people from existing tertiary educational institutions, and the Bantu Homelands Citizens Act reduced any hope that black people might have of regaining citizenship rights in their own country.

While this list of laws is not comprehensive and does not include the myriad of security laws needed to ensure people’s compliance, it reminds us that apartheid-era South African governments ruled by law and power on the basis of a manufactured and artificially maintained parliamentary majority. Everything and anything was permissible if it could be written into law.

Black South Africans fought back with the assistance of the international community. The history of the United Nations cannot be written without considering its stand on apartheid. Within two years of its founding in 1945, it was already focused on the treatment of people of Indian descent in South Africa. That concern quickly broadened as black South Africans began their resistance campaigns against apartheid in the very early 1950s. In 1952 the United Nations Commission on the Racial Situation in the Union of South Africa—UNCORS—was established with three members: Hernán Santa Cruz of Chile, Ralph Bunche of the United States, and Jaime Torres Bodet of Mexico. By 1976, the majority of countries had agreed that apartheid was a crime against humanity and introduced various punitive measures in an attempt to end it.

The South African government of the day continued to argue that sovereignty should trump international opprobrium and that it was acting within the laws passed by the national parliament. Some countries and their leaders found it difficult to disagree, however much they might personally abhor the treatment of black citizens.

Exploiting sovereignty to defend oppression

The struggle against apartheid made it a matter of common sense that domestic law could trap people in a cycle of abuse. The international human rights regime envisaged in the Universal Declaration of Human Rights when it was signed on December 10, 1948, six months after the National Party came to power, was meant to address this problem. Rule by law was from that time on an insufficient basis for national legitimacy, and the world, including both citizens and states, had a responsibility toward those who were being oppressed. National sovereignty was a wall behind which unscrupulous leaders could hide, but not forever.

It was 1994 before apartheid finally ended with an election that was celebrated by the world. It took another two years for South Africans to write and adopt their present constitution, including a justiciable bill of rights that explicitly refers to “everyone” and not to “citizens,” and enjoins any court interpreting the bill of rights to consider international law in their adjudication.

The world expected the new South Africa to promote and protect human rights internationally and to support the international legal framework. South Africans expected it of themselves. As Nelson Mandela wrote in 1993, foreign policy would rest upon six pillars, including “that issues of human rights are central to human relations” and “that just and lasting solutions to the problems of humankind can only come through the promotion of democracy worldwide.”

By 1997, that commitment included advocacy for the International Criminal Court (ICC), with South African UN ambassador KJ Jele noting on behalf of the Southern African Development Community (SADC), “We are convinced that the creation of such a permanent court will, besides meeting out punishment to the perpetrators of such heinous crimes, also act as a strong deterrent to their possible commission in the future.”

The same spirit led to the formation of the African Union, intended to replace the Organisation of African Unity with a contemporary normative membership body that would encourage mutual accountability and peace. The constitutive act of this new organization, founded in Durban, South Africa, in 2002, specifically incorporated “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.”

A turn away from international standards

However, there has been growing criticism of South Africa’s performance at the UN Human Rights Council and in other international human rights and democracy forums. Freedom House itself suggested that South Africa’s support for democracy was “minimal” in a study of 10 countries conducted in 2014.

South Africa’s notice of withdrawal from the ICC on October 19, 2016, foreshadowed by an African National Congress policy decision in 2015, came as a shock to the human rights community. It was followed by similar notices from The Gambia and Burundi. The withdrawal is presently being contested in the South African courts on various grounds by civil society groups, but the government seems determined to move ahead. The decision was greeted with enthusiasm by Sudanese president Omar al-Bashir, who is under indictment by the court and whose 2015 flight from South Africa to avoid a warrant of arrest was abetted by South African government officials, in defiance of the ICC. The government has sought to drop the resulting South African court appeal in light of its move to withdraw from the international tribunal.

When announcing the ICC withdrawal, Justice Minister Michael Masutha insisted that “South Africa remains committed to the fight against impunity and to hold those who have committed crimes against humanity and other serious crimes accountable.” Activists who held fringe meetings at the Assembly of State Parties in The Hague last month remain hopeful that South Africa will not lead a more general walkout from the ICC, and that it might still return to the fold.

However, President Jacob Zuma is a firm believer in a democracy of raw electoral power, and his parochial approach to the role of his foreign representatives suggests that stepping away from the ICC is merely confirmation of a paradigm shift in South Africa’s domestic values and international relations. In the future, unless there is a significant change in leadership, South Africa will guard its own borders and interests, expect others to stay out of its affairs, and allow the rest of the world to rule by law—just as this country did in the apartheid era.

Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.

On October 11 and 12, the AU will meet in an extraordinary summit to discuss pulling out of the Rome Statute, the agreement that created the ICC. Such a decision would have major implications both for ICC itself and for accountability for perpetrators of human rights abuses in Africa and around the world. The nearly three dozen African countries that are currently party to the Rome Statute must vote against this proposal and reaffirm their commitment to justice for victims, an end to impunity at the highest levels for the gravest crimes, and an international system that supports the rule of law.